This
matter is before the Court on a motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence by Penny
Coleman, a person in federal custody. On October 20, 2014,
Coleman plead guilty before this Court to the offense of
felon in possession of a firearm and, on January 20, 2015,
this Court sentenced Coleman to the Bureau of Prisons for a
term of 180 months, the mandatory minimum sentence.
Simmons' § 2255 motion is fully briefed and ripe for
disposition.

Penny
Coleman has filed her first Petition under 28 U.S.C. §
2255, alleging that she was improperly sentenced as an Armed
Career Criminal pursuant to 18 U.S.C. § 924(e). Coleman
argues that the retroactive application of the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) invalidates her classification as an
Armed Career Criminal. Coleman does not set out any factual
basis for her claim. She does not provide any argument that a
particular conviction was improperly classified as a violent
felony or serious drug offense. Coleman also claims that her
sentence was enhanced for a conviction under 18 U.S.C. §
924(c). As a preliminary matter, the record will show that
Coleman was neither charged with nor convicted of a violation
of 18 U.S.C. § 924(c), so that portion her complaint is
easily disposed of. It is clear that Coleman's predicate
Armed Career Criminal convictions were properly classified as
violent felonies and serious drug offenses and would still be
so classified if she were to be re-sentenced today. The
holding of Johnson has no effect on Coleman's
sentence.

Coleman
actually received two sentences from this Court; one of 180
months for being a Felon in Possession of a Firearm (Case
Number 1:14 CR 00029 SNLJ) and another 180 month sentence for
Distribution of Cocaine Base (Case Number 1:14 CR 00080
SNLJ). Coleman's § 2255 petition only complains
about the sentence she received in Case Number 1:14 CR 00029
for the firearm case. She does not contend that her equal,
180 month sentence for her drug conviction was imposed
improperly. Because Coleman does not contend that her
sentence in Case Number 1:14 CR 00080 SNLJ was incorrectly
applied, there is no need to address any issue related to
that conviction or sentence.

For the
reasons set forth below, the Court will deny Coleman's
Petition.

PROCEDURAL
HISTORY

A.
Underlying Conviction

On
April 23, 2014, a Grand Jury in the Eastern District of
Missouri, Southeastern Division, returned a one-count
indictment against Penny Coleman, charging her with Felon in
Possession of a Firearm in violation of 18 U.S.C. §
922(g)(1). (DCD 1, Case Number 1:14 CR 00029) On August 21,
2014, the grand jury returned a second indictment against
Penny Coleman, charging her with Distribution of Cocaine Base
in violation of 21 U.S.C. § 841(a). (DCD 1, Case Number
1:14 CR 00080 SNLJ) On October 20, 2014, Coleman appeared
with her attorney and pled guilty to the charge made in each
Indictment pursuant to a written plea agreement. (DCD 48,
Case Number1:14 CR 00029; DCD 24, Case Number 1:14 CR 00080
SNLJ)

Following
the pleas, a combined Presentence Investigation Report
(“P.S.R.”) was prepared for both Indictments. The
P.S.R. recommended that Coleman be classified as an Armed
Career Criminal (“ACC”) under 18 U.S.C. §
924(e), otherwise known as the Armed Career Criminal Act
(“ACCA”). The P.S.R. recognized three convictions
of Coleman's that qualified as violent felonies or
serious drug offenses. (P.S.R. ¶ 46) (“. . . the
defendant has at least three prior convictions for a violent
felony or serious drug offense, or both, which were committed
on different occasions, Aggravated Battery/Great Bodily Harm
and Aggravated Battery/Weapon/No Firearm, in Docket No.
95CR0314104, and Possession With Intent to Distribute a
Controlled Substance (two counts), Docket No. 06MI-CR00653.
Therefore, the defendant is an armed career criminal and
subject to an enhanced sentence under the provisions of 18
U.S.C. § 924(e).”) The PSR concluded that the
Total Offense Level for both counts was 31. (P.S.R. ¶
49) Coleman's Criminal History Category was IV and the
resulting sentencing range was 180 months. (P.S.R. ¶ 66,
99)

Coleman
was determined to be an ACC based on the following felony
convictions:

(1) Coleman was convicted on April 28, 1995, of the felony of
Illinois Aggravated Battery/Great Bodily Harm and Aggravated
Battery/Weapon/No Firearm in the Circuit Court of Cook
County, Illinois. (P.S.R. & 52 and Exh. 1)

(2) Coleman was convicted on December 11, 2008, of the felony
of Missouri Possession With Intent to Distribute a Controlled
Substance in the Circuit Court of Mississippi County,
Missouri, in two separate counts. (P.S.R. ¶ 58 and Exh.
2)

Coleman
had other felony convictions, but those convictions are not
relevant to any discussion of whether she is an Armed Career
Criminal.

On
January 20, 2015, this Court found Coleman to be an Armed
Career Criminal and sentenced her to a term of imprisonment
of 180 months for the Felon in Possession of a Firearm
conviction. This Court also sentenced Coleman to a term of
imprisonment of 180 months for the Cocaine Base Indictment.
Each sentence was ordered to run concurrently. Coleman did
not appeal her conviction or sentence.

B.
Previous Post-Conviction Motion.

Coleman
had not filed any habeas petitions prior to the current one.
This petition is considered as her “first” §
2255 petition.

CURRENT
CLAIM

In her
current Application for Leave to File a Second Petition under
28 U.S.C. § 2255, Coleman makes a vague allegation that
the holdings of Johnson and Welch should be
applied retroactively to reduce her sentences. Coleman
asserts that she has the right to collateral review of her
ACCA sentence pursuant to the holdings of Johnson v.
United States, 135 S.Ct. 2551 (2015) and Welch v.
United States, 136 S.Ct. 1257 (2016). Coleman does not
explain exactly how these cases affect her sentences, either
by pointing out a misclassification of a prior conviction as
a violent felony, or any other means.

The
problem with Coleman's request is that the holding of
Johnson only permitted attacks on ACCA sentences
that were imposed due to the application of the residual
clause definition of a violent felony. All other reasons for
the classification of a prior conviction as a violent felony,
such as convictions under the “elements” clause
crimes or enumerated crimes, are still violent felony
predicate convictions for ACCA purposes, even after the
holding of Johnson. Serious drug offense
convictions, of which Coleman has two, are also still
considered to be ACCA predicate convictions even after the
holding of Johnson. Coleman's violent felony
conviction for Illinois Aggravated Battery was always
elements clause violent felony. None of Coleman's ACCA
predicate convictions were so classified due to the residual
clause of the definition of a violent felony, the only basis
for a challenge to a sentence under Johnson.

DISCUSSION

A.
Required Threshold Showing for Relief.

A
habeas petition filed by a federal prisoner must follow the
requirements of 28 U.S.C. § 2255 in order to be
considered. § 2255(a) permits a federal prisoner to file
a habeas petition on the grounds that their sentence was
“imposed in violation of the Constitution or laws of
the United States, or that the Court was without jurisdiction
to impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to
collateral attack.” Normally, the filing of such
petitions is limited to a one-year period after the defendant
was originally sentenced. 28 U.S.C. § 2255(f)(1). The
Government agrees that prisoners sentenced as Armed Career
Criminals under 18 U.S.C. § 924(e) may file habeas
petitions under § 2255 beyond the one-year limitation
period if they can demonstrate that their sentences were
imposed due to the now-invalidated residual clause definition
...

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